Establishment Clause

by Frederick Gedicks, Guy Anderson Chair and Professor in Law, Brigham Young University Law School

The recent case of Town of Greece v. Galloway saw Justice Clarence Thomas once again astride a favorite hobby horse, the benighted notion that both logic and text should have precluded the application of the Establishment Clause against the states. As in his many other forays into this field, Thomas concedes that the Clause (“probably”) prohibits a federally established church, but he otherwise reads the Clause as entirely devoted to the protection of state sovereignty—specifically, state power to establish or disestablish religion. Like the 10th Amendment, Thomas maintains, the Establishment Clause was meant to protect the states and thus is rendered absurd when applied to limit state power. Thomas relies on this purported absurdity to excuse himself from any serious engagement of the historical record, unilaterally shifting the burden of historical proof to incorporationists. As I have shown elsewhere in detail, all of this is demonstrably wrong.

It is puzzling that such an ardent champion of federalism as Justice Thomas should fail to grasp that the Establishment Clause, like the Constitution’s other structural limitations on the federal government, was originally understood to protect individual liberty as well as state sovereign power. The Federalist Papers repeatedly emphasize that the division of sovereignty between the federal government and the states protects both state power and personal liberty from federal power. The Court’s own precedents emphasize this as well, most recently in Bond v. United States (2011), a unanimous opinion which unambiguously declared, “Federalism... protects the liberty of all persons within a State by ensuring that laws enacted in excess of delegated governmental power cannot direct or control their actions.”

Apparently a bit of sanity has surfaced in the North Carolina legislature where a couple of lawmakers introduced a resolution declaring the state could establish an official religion. The Charlotte Observer reports that House Speaker Thom Tillis is saying the chamber will not vote on the resolution.

In this case Joint Resolution 494, which in part declared that the First Amendment does not apply to the states, showcases a couple of lawmakers who are either woefully ignorant of the U.S Constitution and First Amendment jurisprudence or are blatantly provocative.

First, as has been pointed out by a lot people like law school professors, much of the Bill of Rights do apply to the states. Starting in the 1920s federal courts ruled that the Constitution's 14th Amendment applies most of the Bill of Rights to the states.

Nevertheless, the lawmakers’ resolution states that the First Amendment’s Establishment Clause, which provides for a separation of religion and government, “does not apply to the states, municipalities, or schools.” The resolution also includes sections declaring the Constitution “does not prohibit states or their subsidiaries from making laws respecting an establishment of religion,” and that the N.C. legislature “does not recognize federal court rulings which prohibit and otherwise regulate the State of North Carolina, its public schools, or any political subdivisions of the State from making laws respecting an establishment of religion.”

Although the resolution does not specify what religion N.C. would officially recognize, it undoubtedly would be Christianity. The lawmakers pushing the resolution said they were doing so in part to provide a show of support to Rowan County Commissioners who are waging a legal battle to keep using Christian prayers at their public meetings. (The Supreme Court has ruled that if lawmakers feel the need to use prayer during official business, it should be nonsectarian, otherwise they leave themselves open to a First Amendment challenge. The ACLU has lodged a lawsuit against the county commission arguing that its prayer policy violates the separation of government and religion.)

The impact Superstorm Sandy had on homes, businesses, nonprofits, and houses of worship across the Northeast was devastating. And still, in the wake of the storm, these institutions reached out to their communities to provide the help they could. At the same time, they began the process of their own rebuilding; for congregations, this meant repairing their sanctuaries and sacred spaces.

After a disaster, businesses and nonprofits often look to government assistance to help rebuild damaged property. Despite the talk in the past couple of months about how these government assistance programs discriminate against houses of worship, they don't. All nonprofit organizations (including houses of worship) and for-profit businesses can get low-interest, long-term, government-secured loans -- up to $2 million -- for losses not fully covered by insurance. Direct FEMA grants of taxpayer funds, however, are intended to serve a certain purpose—those grants are for nonprofits with facilities used for emergency, essential, and government-like activities to the community at large. Houses of worship, just like the many other nonprofit facilities, aren't then eligible to receive FEMA grants. Today, the House of Representatives approved H.R. 592, the so-called Federal Disaster Assistance Nonprofit Fairness Act of 2013, a bill that would upend this well-established policy to explicitly permit FEMA to funnel taxpayer funds to houses of worship.

FEMA's policy not only ensures that FEMA grants are used to rebuild facilities that provide the most critical services to the entire community, but also reflects an important constitutional principle. Religious liberty is one of our nation's most fundamental values and it starts from the precept that religion and religious institutions thrive when both religion and government are safeguarded from the undue influences of the other.

We’ve heard it for decades from the Christian Right that the nation’s public schools are hostile to religion, prohibiting students from praying or engaging in other religious activities. It is rhetoric that has helped fuel the so-called culture wars. The rhetoric is also blatantly misleading.

There were a couple of U.S. Supreme court cases in the 1960s that prohibited organized religious activities in the public schools. But neither case, regardless of the shrill cries of Christian Right leaders, prohibited truly voluntary student prayer. The concept was fairly straight forward. Public school officials are government employees and the First Amendment’s establishment clause bars the government from demanding that people, including students, pray or engages in religious activity. The free exercise clause of the First Amendment provides that government must be neutral toward religion and cannot take undue action to interfere with religious practices.

So those two high court cases – Engel v. Vitale and Abington v. Schempp – did not ban religion from the schools. Students can pray in school on their own time, such as moments before a test, or with other students, as long as such activity is not disruptive of the school’s mission to teach reading, writing, math, history, and science.

Nonetheless, those high court cases have been twisted by Christian Right lobbying groups, such as Focus on the Family, the Family Research Council, American Family Association, and TV preachers such as Pat Robertson, to help their campaign to portray America’s public places, even limited ones like public schools, as hostile to Christianity. Government officials they often argue are bent on banishing religion and Christianity in particular, from the public square.

The misinformation has caused great confusion in the public schools about religion’s proper place. But the First Amendment Center’s Charles Haynes, director of the Religious Freedom Education Project at the Newseum, has spent decades trying to straighten things up.

A new ACS Issue Brief explores another avenue to the courthouse that the Roberts Court is narrowing, involving the ability of people to challenge unconstitutional government support of religion.

The First Amendment’s establishment clause requires that government act with neutrality toward religion, meaning a certain amount of separation between government and religion is a must. But, according to the ACS Issue Brief, the ability of people to bring constitutional challenges to government action supporting or advancing religion is becoming increasingly difficult.

In “The Slow, Tragic Demise of Standing In Establishment Clause Challenges,” Willamette University law school professor Steven K. Green writes, “By deciding not to decide certain classes of challenges, courts will effectively be throwing Establishment Clause questions … to the politically elected branches. Political expediency, rather than constitutional fealty, will become the rule of law, and Justice Robert Jackson’s immortal statement about withdrawing questions of constitutional rights from ‘the vicissitudes of political controversy’ and placing them ‘beyond the reach of majorities and officials’ will be stood on its head.”

Green notes that in its 1968 Flast v. Cohen opinion, the Supreme Court upheld the right of taxpayers to challenge “government expenditures where the litigant could demonstrate a connection between the legislative action authorizing the expenditure and the purported constitutional violation. As a result of Flast, any taxpayer could allege that a legislative appropriation on behalf of religion violated the Establishment Clause, regardless of her own connection to the entity or institution receiving the government funds.”